Opinions
‘Because of sex’ approach to protecting trans people
Many analyses of Bostock decision missed the real history

“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado
The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.
It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.
Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).
So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.
How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.
The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.
Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.
The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.
It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”
It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.
So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.
Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”
This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.
Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.
People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.
Dana Beyer is a longtime D.C.-based advocate for transgender equality.
Opinions
D.C. is the place for the Democratic Socialists of America
Our endorsed candidates hold their affiliation as a badge of honor
D.C. is the place for the Democratic Socialists of America (DSA). We believe in a District where everyone can live a happy and dignified life. That means housing, healthcare, transit, education, and safety are treated as guarantees rather than privileges reserved for the wealthy and well-connected.
Our endorsed candidates do not hide what they believe. They engage in the democratic process openly, explain their politics clearly, and ask their fellow members to spend long nights and weekends doing the hard work of campaigning. And as the last six years of local elections have shown, including three successful D.C. Council campaigns and the overwhelming passage of Initiative 82, D.C. voters are often a great deal more interested in the endorsement of Metro DC DSA than in the handwringing of the Washington Post editorial board.
That is what makes Peter Rosenstein’s April 2 op-ed in the Blade so revealing. His piece was not just wrong. It was smug, unserious, and politically disconnected from the actual lives of queer people in this city. Worse, he used the platform of our local LGBTQ outlet to disregard Palestinian humanity while scolding democratic socialists for refusing to join him in that moral failure. Put plainly, Rosenstein has been publishing crank op-eds for years, and this one was no exception.
My name is Hayden Gise. I am a transgender, lesbian, Jewish, Democratic Socialist, and I am a union organizer. I do not speak on behalf of the national DSA organization, the local chapter, or any campaign. But I will not sit quietly while Rosenstein wraps himself in the mantle of queer Jewishness to sell the lie that anti-Zionism is antisemitism.
He packages that lie in the same kind of pinkwashing rhetoric used by Benjamin Netanyahu, who mocked solidarity with Palestinians by saying, “Some of these protesters hold up signs proclaiming ‘Gays for Gaza.’ They might as well hold up signs saying ‘Chickens for KFC.’” Rosenstein’s liberal Zionism is not thoughtful, brave, or nuanced. It is just a more polished way of telling Palestinians their lives matter less and telling queer people we should be grateful for the empire so long as it flies a rainbow flag. Which, by the way, is showing itself to be a losing strategy.
The ongoing genocide in Gaza is not some tragic deviation from the history of an otherwise peaceful Israel. The Nakba was the mass expulsion and displacement of Palestinians during Israel’s establishment in 1947–49, when hundreds of thousands were driven from their homes. My Jewish values tell me that is wrong. Rosenstein’s politics treat anti-Zionist Jews like me as illegible. No serious person should treat that accusation as an argument.
But the deeper problem with Rosenstein’s piece is that he has no real understanding of why Democratic Socialism resonates here. For queer people in D.C., Democratic Socialism is not an abstract theory. It is rent that does not consume half your paycheck, a union on your job, childcare you can actually afford, public transit that works, and a city where working-class Black and brown queer people are not displaced so developers and donors can cash in. Queer politics is not only about recognition. It is also about whether ordinary people can afford to survive.
That is why D.C. is fertile ground for Democratic Socialism. In the race for mayor, one of the leading candidates is Kenyan McDuffie, whose campaign already looks like a focus-grouped merger of Andrew Cuomo’s slogan and Donald Trump’s graphic design instincts, backed by big business interests and the super PAC money that follows them. The other has the endorsement of the major labor unions in the District. Who has a cohesive vision to make D.C. more affordable and childcare universal. Who puts people over profit and human rights over political expediency. Our next mayor, and our first Democratic Socialist Mayor: Janeese Lewis George.
D.C. is exactly the kind of city where Democratic Socialism should grow: working-class, queer, tenant-heavy, union-minded, and tired of being told that dignity is too expensive. Which side are you on? I know what side the queer people of the District of Columbia will be on.
Hayden Gise is a union organizer in Washington, D.C.
For half a century, the arc of LGBTQ progress in America has bent—slowly, imperfectly—toward justice. We fought for visibility, for legal protections, for the right to marry, serve openly, and live with dignity. Each generation built on the courage of the last.
And yet today, that progress is in peril. Across the country, lawmakers are rolling back protections, demonizing LGBTQ people for political gain, and trying to erase us from public life.
Opponents of our equality are working to erase us from the Constitution, and indeed, public life. In moments like this, based on my personal involvement working with one of the most effective leaders for LGBTQ rights I find myself asking a simple question: What would Jeffrey do?
Jeffrey Montgomery—the focus of a new documentary “America You Kill Me” and a long time Michigan activist and founder of the Triangle Foundation—was never content with quiet advocacy or compromise. He was a rabble-rouser, a strategist, and a relentless thorn in the side of powerful bigots. When politicians tried to marginalize LGBTQ people, Jeffrey didn’t politely ask for scraps. He forced the issue.
Jeffrey Montgomery started with his own determined voice and turned it into a movement. His story is living proof that personal courage can spark national conversations about justice and inclusion.
At a moment when the LGBTQ movement again faces hostility and regression, Jeffrey’s playbook offers lessons we would be wise to remember.
First, Jeffrey understood the importance of punching above our weight. In the early days of LGBTQ organizing, our movement was small, underfunded, and politically marginalized. But Jeffrey refused to let opponents see us that way. Through visibility, media savvy, and relentless organizing, he made LGBTQ advocates appear larger, stronger, and more unified than our numbers alone might suggest.
That perception mattered. Political opponents think twice before attacking a movement that looks organized, energized, and capable of mobilizing public pressure. Jeffrey knew that power is partly about reality—but also about what your opponent believes your power to be.
Second, Jeffrey never compromised on the value of our lives. Movements make compromises all the time. Politics often requires it. But Jeffrey understood that some things are not negotiable. The basic humanity of LGBTQ people is one of them. You can’t put our basic rights on the ballot. You don’t tell people to wait their turn. There are no turns. It’s now. It’s always now.
Too often, our opponents frame equality as something to be bargained over—as if the dignity and safety of queer people were a policy preference rather than a fundamental right. Jeffrey rejected that premise entirely.
You can negotiate strategy. You can negotiate timelines. But you cannot negotiate the worth of human lives.
And finally, Jeffrey understood the power of coalition. Today, one of the most effective tactics used against marginalized communities is division. If LGBTQ people can be fractured—by identity, ideology, generation, or strategy—our collective strength weakens.
Jeffrey instinctively resisted that trap. He worked with civil rights groups, labor leaders, faith communities, civic leaders and allies across movements. He understood that the fight for LGBTQ equality was never isolated from the broader fight for justice.
When opponents try to divide us, the answer is not retreat into smaller camps. The answer is to build broader ones.
If Jeffrey Montgomery were here today, he would not be discouraged by the backlash we are seeing. He would recognize it for what it is: the predictable response of those who feel their power slipping away.
And he would remind us that progress has never been linear. It has always required courage, persistence, and a willingness to challenge power directly.
So, when the moment feels uncertain, when the political winds shift against us, and when our opponents try to make us feel small, the question remains a useful one: What would Jeffrey do?
If history is any guide, the answer would be simple. He would make some noise. And making noise, today, means refusing to let fear, fatigue, or false unity quiet us when our lives are on the line.
Sean Kosofsky was director of policy at the Triangle Foundation.
Opinions
D.C. not the place for antisemitic Democratic Socialists of America
Candidates like Janeese Lewis George should reject its endorsement
D.C. is not the place for the antisemitic Democratic Socialists of America (DSA), who advocate for the end of the State of Israel from the ‘river to the sea.’ The candidates they endorse agree to their platform, which includes not talking to any Zionist organizations. Being a Zionist simply means supporting the existence of the State of Israel. It does not mean supporting the war criminal who heads the government, or what he is doing, including murdering innocent Palestinians, or bombing civilians in Iran and Lebanon. As Ron Halber, CEO of the Jewish Community Relations Council of Greater Washington, wrote in a column in DC Jewish Week, the views of the DSA are totally unacceptable.
The Council is non-political, but I am not. I can say one candidate for mayor, Janeese Lewis George, has asked for, and received, the endorsement of the DSA, and by doing so agrees to its antisemitic platform. After her endorsement became public, George tried to ‘privately apologize’ saying she didn’t see the questionnaire submitted by her campaign, rather it was submitted by a staffer. Now George says she is both not antisemitic, and supports Palestinians. Well, that sounds good. But she, and anyone else who accepts the DSA endorsement, has to answer a series of questions: 1. Are you for a two-state solution and the continued existence of the State of Israel, contrary to the position of the DSA? 2. Do you support BDS? 3. What is your definition of a Zionist? 4. What is your acceptable definition of antisemitism? 5. Will you meet with Zionist groups in DC?
Then, we must recognize if one candidate, like George, can go after and accept an endorsement from an antisemitic organization, it gives tacit permission for others to do the same with organizations that might be Islamophobic, racist, homophobic, sexist, or anti-immigrant. All unacceptable. I urge D.C. voters to reject any candidate, for any office, who has the endorsement of the DSA. That is not what we want the leaders of our government to represent.
Thankfully, there are many choices in this year’s Democratic primary elections for every office. There is a race for mayor, congressional delegate, attorney general, Council chair, two D.C. Council at-large seats, additional Council seats, Democratic State Committee seats and ANCs. D.C. political leadership will look very different after this election.
I urge voters to whittle down their choices by first rejecting anyone endorsed by the DSA. The DSA’s platform, aside from being antisemitic, also includes suggestions to ‘Defund the Police.’ That is a slogan some of the candidates running adopted a few years ago, thinking the people wanted it. They quickly found the people of D.C. didn’t want fewer police, they wanted their police better trained, with better community oversight. They wanted to be sure the police were here to protect them, not to harass them. People should know the DSA at one point even withdrew its endorsement from Rep. Alexandra Ocasio-Cortez (D-N.Y.) as she wasn’t strident enough in her opposition to Israel and actually met with a Zionist organization. There are many Zionists like me — a gay, Jewish man — who support the existence of the State of Israel, yet want to see Netanyahu, a war criminal, a murderer, tried for his crimes and in jail, and his government replaced. Zionists who support Palestinians and want them to have their own free state.
As you decide who gets your vote, one way to find out about a candidate is looking at their website. I would suggest you reject any candidate who doesn’t have a strong issues section. The least you can expect of a candidate is to tell you in detail what they intend to do if you elect them. That includes our delegate to Congress, even if they won’t have a vote. If Democrats take back the House of Representatives, we can expect our delegate to once again get a vote in committee, and that can be very important.
In the next couple of weeks, I will make some endorsements and share them with you in the Blade, for anyone who might be interested. They will detail why I endorse a particular candidate. I will not suggest second, third, fourth, or fifth choices. That is for you to decide. No matter who you give your first vote to, even with ranked choice voting, you can still vote for only one person. If you decide to list more choices, make sure the views of your second, and other choices, coincide with those of your first choice.
So here is to an honest election season, one in which we end up with candidates winning who really care about our city, who have proven track records, and who will make us proud. Your job is to VOTE, and I hope everyone will.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
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